News & Articles

In McDonald v. Chicago, The Supreme Court reasserted today that individuals have the right to retain guns at both the State and Local levels. The Majority consisting of conservative justices—- Alito, Roberts, Scalia, Thomas, and Kennedy based their decision on the history of the second Amendment, where militias were given the right to protect their farmlands. At that time we had no organized police force, we had no justice system in place.

Who are the militias of today? The KKK– the uneducated people, who generally do not work, collect welfare checks, and blame all their owes on the colored people and now the “illegal immigrants.”

If the Supreme Court grants the right to local levels to enact gun controls, one can only speculate for instance what kind of gun control laws Maricopa COunty in Arizona will enact.

Due Process protects every “individual”; it does not say “citizens”. And just like every individual has the right to protect themselves with weapons, every individuals also have the more fundamental right to live.

Although the justices said that the Second Amendment allows for a reasonable restriction of guns, their rationale based on history of the second Amendment gives the militias a carte blanche right to bear arms. This can indeed set a dangerous precedence.

Houston-area immigration lawyer Annie Banerjee describes some action steps if you leave the United States without surrendering a little white or green form called an I-94.

When you entered the U.S., you were required to fill out a white form if you entered with a visa and a green form if you entered without a visa. Upon leaving the United States, you were supposed to surrender that I-94 form to the U.S. government. What if it didn’t happen? It’s still in your pocket when you get to your destination after a flight. The airline you traveled on didn’t take it from you. In any case, you still have it – and the U.S. government doesn’t. “For all they know, you are in the country illegally, past the date stamped on the I-94, and you are in trouble,” explains Annie Banerjee, a Houston-area immigration lawyer.

“If this happens, there’s only one option, you have to mail it back to the government and hope for the best,” Banerjee asserts, “You will also need to send corroborating documents to prove that you are out of the country.” Addressing the letter to: DHS-CBP-SBU, 1084 South Laurel Road, London, KY, 40744, USA – is the easy part, as long as you’ve slipped in the precious I-94. But corroborating documents must be sent too. “These can include, but are not limited to, the following items,” Banerjee said, before rattling off the ensuing ‘laundry list.’

1. Original boarding passes you used to depart another country, such as Canada, if you flew home from there;

2. Photocopies of entry or departure stamps in your passport indicating entry to another country;

3. After you departed the United States, you should copy all passport pages that are not completely blank, and include the biographical page containing your photograph.

4. Photocopies of other supporting evidence, such as: Dated pay slips or vouchers from your employer to indicate you worked in another country after you departed the United States;

5. Dated bank records showing transactions to indicate you were in another country after you left the United States;

6. School records showing attendance at a school outside the United States to indicate you were in another country after you left the United States;

7. Dated credit card receipts, showing your name, but, the credit card number deleted, for purchases made after you left the United States to indicate you were in another country after leaving the United States.

On June 8, 2010, an application for preliminary injunction and complaint was filed by Greenberg Traurig LLP in the U.S. District Court for the District of Columbia which challenges USCIS’s application of the January 8, 2010, Neufeld Memorandum’s definition of employer-employee relationships.

On June 8, 2010, in the lawsuit Broadgate et al versus United States Citizenship and Immigration Services, et al, the controversial Neufeld Memorandum of January 8, 2010 – which allegedly clarifies employer-employee relationships within H-1B visa applications in the interests of the United States Citizenship and Immigration Services (USCIS), but in practice has resulted in a preponderance of H-1B denials filed by Information Technology (IT) staffing firms – was challenged in the U.S. District Court for the District of Columbia.

Individual plaintiffs in the case – Broadgate Inc., Logic Planet Inc., DVR Softek Inc., TechServe Alliance, and the American Staffing Association moved in a preliminary injunction to prevent the USCIS from implementing the policy announced in a January 8, 2010, memorandum issued by Donald Neufeld, Associate Director of USCIS. The memorandum declared that a third-party placement contractor is not a United States employer even though the company hires, pays, supervises, fires its employees, and shares control over them, and even though prior to the implementation of the policy initially announced in the memorandum, such an entity was deemed to be a United States employer. It was the preliminary injunction’s contention that this new policy is arbitrary and capricious, while it explicitly changes an existing regulation, limits USCIS’s discretion, and profoundly affects plaintiffs and others outside the government.

According to the injunction, the Neufeld Memorandum is at odds with the plain language of the relevant statute and its implementing regulations. For instance, The Neufeld Memorandum is premised on the assumption that an employee can have only one employer and that “the real employer” is the entity that exercises the greatest day-to-day control. It therefore proclaims that third-party placement contractors that have an overarching right to supervise their employees, that hire, fire and pay their employees and that share control of those employees nevertheless are not valid employers because they have “No Right to Control; No Exercise of Control.” This binding policy is inconsistent with the plain language of the INA which expressly includes contractors as United States employers.

In addition, the rule first introduced in the USCIS Memorandum singles out a particular type of business and, as applied, it precludes that type of business from operating.

Although I am not going anywhere, as summer rolls along, visions of distant lands dance in my head. However, that vision is marred by long lines at the airports— getting your luggage checked, getting into a plane with carry on bags and no overhead place, and finally the immigration and customs line ups.

This year, for a fee, the Government and even some airlines are helping to ease that pain.

The US Government, (and some foreign Government as well like Holland) has introduced the Global Entry Program. US Citizens over the age of 14 can pay a fee of $100/- (valid for 5 years) and enroll in the program. They have to enter their data in the following web site:

After the completion of the process, there will be a one time only CBP interview.

However, once its complete, you do not need to stand in any immigration line. There are kiosks in most major airports. The traveler has to scan in their passport at airport kisoks, and zoom down to luggage claim.

Similarly, in Houston IAH, international travelers who are US Citizens and has no checked luggage, can go through the lines used by pilots and air hostesses for faster processing.

This process can be used by anyone, but because of the lengthy process to get into the program, its probably feasible for frequent business travelers only. The travelers also get expedited check in in kiosks of other participating countries as well. As more countries sign on, the price may come down. Or this may simply become a requirement for foreign travel in the future. It will save money on personnel for countries participating in this program.

Additionally, some airlines are also letting passengers cut in line for boarding the plane or for checking in for a fee. Both American and South West is going to be offering this perk for a fee ranging from $10/- to $50/- per ticket.

This will be the future of travel, in a world increasingly short for time. But then, in this world, will there even be time for vacations?

There’s been abundant rhetoric about the necessity for immigration reform. But according to Houston-area immigration lawyer Annie Banerjee, now may not be the time.

On June 10, 2010, the “one-party” Health Care Bill was signed into law after being passed by the Democrats. While President Obama’s determined attempt to achieve legislative success in a bipartisan manner is perhaps laudable and worthy of historic kudos, according to Annie Banerjee, a Houston-area immigration lawyer, it might have been “more strategically prudent” to concede to Republican demands.

“He refused to compromise with the Republicans, courted the Democrats, and rammed a bill down the throats of an unwilling population,” asserts Banerjee, “That is not democracy. What will happen to that Health Care Bill is that Republicans will file a court challenge to it. The conservative Supreme Court will declare it unconstitutional. In the meantime, in October the makeup of the Senate and House will change and the health care issue will die.”

Despite her misgivings regarding the fate of the health bill, Banerjee is of the opinion that immigration reform can be bipartisan.

“There were at least two bills jointly put forward by a Republican and a Democrat,” Banerjee explained, “Former President Bush wanted immigration reform as much as President Obama does. Yet the parameters are different for different parties. The Democrats want to legalize the undocumented aliens who are illegally here. They do mainly manual jobs, work hard, and are necessary for the country. However the Democrats frown upon the intellectual jobs being done by mostly Indian and Chinese professionals, who are here legally on H-1B visas, giving into protectionist labor organizations. The H-1B visas have been attacked ever since Mr. Obama took office. First there were the workplace raids, whose main purpose was to see if businesses were following the letter of the law minutely. Then came the January 08 memo, which virtually ended consulting companies (mainly IT companies) ability to hire foreign nationals on H-1B. These people are legal, have valid visas and work in professional jobs. They too are necessary for the American economy. American colleges do not generate a high volume of computer professionals necessary to keep American businesses going. The Republicans support these work visas, the Democrats don’t.”

Banerjee concludes only the obvious: That immigration reform must be comprehensive. “Just as the Health Care Bill did not include provisions to curb tort lawyers, an immigration bill which only addresses the illegal immigrants supplying manual labor and not the legal immigrants supplying intellectual labor is simply unacceptable.”

If you were wondering why the Tripple G rated (Guns, God and Gays) Southern States, still under the shadows of the Jim Crow laws have not passed on their hatred for immigrants in a restrictive bill like Arizona, wonder no further. The Texas GOP convention this past week end in Dallas adopted an anti immigration stance that would bar illegal immigrants from “intentionally or knowingly” residing in Texas. Of course the GOP did not clarify if this knowledge applies to residing in Texas or being not legal. But then, we need to one up Arizona. So the GOP advocated for an “open carry” law which would allow residents of carrying fire arms in the open, without a concealed weapons permit. Of course that would in Texas terms mean shoot on sight, especially at brown people.

Take into account that we recently changed our history textbooks to reflect the right wing ideology and we are the perfect breeding ground for future KKK party members. And how many years ago was it that Texas actually belonged to Mexico? Maybe we should, as Governor Rick Perry had once suggested, secede, form our own ultra right wing country and gradually fade into oblivion.

The I-140 Educational and Work Experience equivalency is a good way to have your experience count, and maybe transcend to the lottery-picked visa system.

Lottery-picked employment-based visas go like hotcakes and professional people with aspirations about coming to America can easily be left out.

Ever heard of the I-140 Educational and Work experience equivalency? While immigration is the only niche within the legal arena where quotas are still allowed, it’s common knowledge that employment-based visas, such as the coveted H-1B, aren’t easily obtained by professionals wishing to immigrate to the United States from India and China. These populous nations teeming with qualified professional people get their national quotas filled quickly, resulting in queues to try one’s patience, especially for third preference visas. Second Preference is another option, albeit with caveats.

For instance, your experience must be post-degree and involve a pre-petitioning company. If you have experience in the same job at the petitioning company, this is insufficient because if the employer is able to train the beneficiary, he’d prefer training an American – not you.

If you possess a master’s degree but it’s not from the U.S., the problem of congruence can arise – as your master’s isn’t likely to match your bachelor’s as a credential.

Since evaluations are for advisory purposes only, the USCIS does not have to follow them. In the same vein, work experience can’t be substituted for years in a degree program – as the H-1B allows.
Recommendations by the Nebraska Service Center for Degree equivalency could also be pertinent.
If you do possess a U.S. master’s degree – and if it’s in the field required, no additional documents would be required.

Your 4 year bachelor’s degree + 2 year master’s degree obtained in India will need to be “subbed” by degrees in the same or related fields to equal a U.S. master’s degree.

If you possess a 3 year bachelor’s degree + 1 year postgraduate diploma + 2 year master’s degree obtained in India, to become acceptable for educational preference you’ll require degrees in the same or similar field or a bachelor’s degree + one additional year of education, to measure up. If you have 5 years of progressive experience, this combination could be acceptable as a master’s degree equivalency.

The Administrative Appeals Unit (AAO) recently held that if a case does not establish the factual basis of a prima facia case, then it will be denied without a request for additional information.

The case involved an Outstanding Researcher.(OR) The AAO, quoting a Ninth Circuit case, Kazarian v. USCIS 2010 WL 725317, said that there are two prongs to establish whether the case satisfies regulatory requirements.

The first is whether the case has the requisite evidence. In an OR case, the petitioner must have the two out of six criteria set forth in the regulation.

The second is whether the evidence meets final merit. This is where the case gets interesting. Granted initially it was a poorly prepared case. But the AAO suggested a number of things, with no precedence, that seemed absurd. Here is a short list:

1. The beneficiary was on Peer review Committee of journals. The AAO suggested that most scientists do this. My understanding is that only senior scientists are given this privilege.

2. The AAO suggested that most researchers gets grants. No, labs and senior scientists gets grants, junior members don’t. As a matter of fact, not so long ago there was an article in the Wall Street Journal about how it was the junior or novice scientists that came up with novel ideas that changed the world. Einstein, Newton etc were in their prime when they discovered their seminal research. Yet junior scientists are NOT given grants.

3. The AAO states that the petition requires an offer letter from the sponsor. In an OR case, the sponsor is the hiring institution. They have to sign the I-140 and the petitioning document. Why would they do that, if they did not intend to offer the beneficiary the job?

4. The Petitioner must provide documentary evidence of the employer’s ability to pay. If the petitioner states (under oath) in the I-140 their gross and net; I think they meet their prima facia obligation. If Texas Service Center (TSC)(where the case got denied) does not think this is enough to establish the fact, then an RFE would be appropriate.

I know there is a huge backlash against any type of employment based immigration, and I know there is a high unemployment rate. But to stay competitive, we MUST do research. And most researchers in this country come from foreign lands. If we dont keep abreast of science and technology, most high tech jobs will be outsourced. India will do the research, have the patents. And we will only pay second fiddle.

And if the TSC adjudicators do not believe me, they need to get into their cars, drive less than 3 miles down Stemmons Freeway to Harry Hines Blvd. There is UTSW, one of the premier medical school and research institution in the US. They have three Nobel laureates and countless foreign researchers. And think, if we dont change our policy, all the Nobel prizes will go to other countries.

Why do Governments have a wonderful capacity of taking something completely good and turning it into a nightmare? Does the very definition of democracy mean “you cannot get anything done quickly when dealing with the Government?”

The DOL launched its new Prevailing Wage System on January 01, 2010. Previous to that the State Workforce Agencies (SWA) determined the Prevailing Wage for their state. A Prevailing Wage Determination (PWD) is required to determine what the wage rate should be for a job. Previously the SWAs were widely different and caused a lot of problems. So DOL wanted to centralize the process. Commendable indeed, but they introduced this whole thing with no alpha or beta testing whatsoever.

The DOL created a form, which has to be filled in by hand or typing and then snail mailed to the DOL. DOL then types it into their system. A form that we could submit electronically would have been so much easier and traceable, (like PERM), but DOL wont have that. We send ours by certified mail, and then we don’t hear from one or two of them at all. They get lost in the mail. We have certified receipts to prove they reached DOL’s doors, but no way to follow up.

The officers who determines the are untrained. They sometimes ask stupid questions. Some get returned if we use the major as “general” even if this is for a third preference skilled worker job. The officers do NOT have basic training. I can understand some confusion initially, but we have crossed the six month mark. And the determinations vary so widely from one adjudicator to the other, that they outdo the variance between the different SWAs. So much for a centralized system.

The PWD takes forever to get done and come back, and then it is sometimes valid for barely two months. After that the employer has to advertise for the job, wait a month and then file. And the Prevailing Wage has to be valid at the time of filing. Since advertisements are valid for 6 months only, and there is no knowing when we will get the prevailing wage from DOL, it is not advisable for employers to start advertising without the prevailing wage determination.

There are only so many combination that the PWD form can have. The simple solution would be to mechanize the whole system and have a computer determine the prevailing wage. It would make far less mistakes than humans and would be a lot cheaper. But then, that is not how the system works.